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Texas Abortion Law: Conservative Supreme Court Justices Signal Willingness To Rule Against SB 8

By News Creatives Authors , in Business , at November 1, 2021

Topline

As the Supreme Court heard arguments Monday in two cases concerning the legality of Texas’ near-total ban on abortion, multiple conservative-leaning justices suggested they could potentially rule against Texas and impose an injunction that would block Texas’ Senate Bill 8 (SB 8), despite an earlier ruling by the court that upheld the law.

Key Facts

The court heard arguments in a case brought by abortion providers, which asks the court to let a district court move forward with the case after an appeals court blocked them from doing so, as well as impose an injunction that would block SB 8 as the litigation plays out.

The justices were divided on whether the court could block the law under the court precedent Ex Parte Young, which stops federal courts from imposing orders against state courts, but Justice Amy Coney Barrett said she believes there’s language in that precedent “that favors” the abortion providers, and Justice Brett Kavanaugh suggested the court could extend its precedent in that case to close the “loophole” Texas is taking advantage of.

Barrett also raised skepticism about whether state courts could fully consider the constitutionality of SB 8, which is enforced through private citizens bringing lawsuits against those who facilitate abortions instead of government officials.

Kavanaugh questioned Texas Solicitor General Judd Stone over the implications of upholding the law, which could lead to other states enacting similar laws for other issues like gun rights, and pushed back when Stone said Congress could simply pass laws that would stop them from doing so, noting that would be “quite difficult.”

Some conservative justices who otherwise appeared to back Texas’ legal position, Justices Samuel Alito and Clarence Thomas, nevertheless questioned whether private citizens actually had standing to bring their lawsuits—to which Stone claimed the “outrage” those plaintiffs feel over abortion is enough of an injury to let them sue.

When the court then heard arguments in the Justice Department’s lawsuit against SB 8, which will determine whether the federal government has standing to sue to block the law, Barrett asked a question of Solicitor General Elizabeth Prelogar with the hypothetical that the Supreme Court could side with the abortion providers in their case, suggesting she may be leaning that way.

Contra

While the conservative-leaning court seemed potentially open to siding with abortion providers, the justices gave less of an indication they would be willing to rule in the DOJ’s favor. Chief Justice John Roberts, who signaled some opposition to Texas’ case in the abortion provider suit—at one point getting seemingly irritated with Stone—questioned the “broad” authority federal government is seeking in trying to block Texas’ enforcement of SB 8. The chief justice suggested the DOJ was seeking an “injunction against the world,” and said he shared concerns brought up by conservative Justices Alito and Neil Gorsuch, who are expected to rule in Texas’ favor.

What To Watch For

The Supreme Court typically takes a few months to issue opinions in cases for which it hears oral arguments, though Politico points out that given how quickly the court decided to hear the case, it could feel more urgency to issue its decision on a faster timeline. The court will also consider abortion rights again on December 1, when it hears arguments in a case challenging Mississippi’s 15-week abortion ban. That case will more broadly determine whether states can restrict abortions before the fetus is viable, and the court’s decision could potentially significantly weaken or overturn Roe v. Wade.

Key Background

SB 8 went into effect September 1 as the most restrictive abortion law in the U.S. The law bans nearly all abortions after approximately six weeks of pregnancy and giving private citizens, rather than government officials, the power to enforce the law through lawsuits against anyone who “aids and abets” an abortion. The Supreme Court challenge offers the biggest test yet of SB 8’s lawsuit enforcement mechanism, which was designed in order to make it harder for the law to be struck down in court because it’s difficult to name defendants who can actually be blocked from enforcing the law. The Supreme Court decided to take up the Biden administration and abortion providers’ cases challenging the law after it had already ruled in Texas’ favor once in the abortion clinics’ case. 

What We Don’t Know

What the implications of the court’s decision will be beyond just the Texas law. A number of other states are considering passing similar abortion laws to Texas’ given the fact the law seems harder to strike down in court, which the Supreme Court could give license to by upholding SB 8. A number of attorneys and advocates who filed briefs in the Supreme Court case have also noted SB 8’s provision empowering private citizens to enforce the law through lawsuits could also extend to other issues if the law’s structure is upheld. 

Surprising Fact

A gun rights group warned in an amicus brief the abortion law being upheld could lead to states trying to restrict gun rights and evade the Second Amendment, for instance, and the NAACP Legal Defense Fund noted the precedent SB 8 sets could also be used to target “all manner of constitutional protections and civil liberties,” such as threatening news outlets with lawsuits despite the First Amendment.

Further Reading

Supreme Court Keeps Texas Abortion Law In Effect For Now But Will Take Up Challenges (Forbes)

DOJ Asks Supreme Court To Rule On Texas Abortion Law — Here Are All The Abortion Cases The Court Could Rule On This Term (Forbes)

Supreme Court Refuses To Strike Down Texas Abortion Ban (Forbes)

Supreme Court’s Approval Rate Plunges Amid Abortion Debate, Poll Finds (Forbes)

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